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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIAM DISABATINO, :

Petitioner, : CIVIL ACTION

:

v. :

:

PA BOARD OF PROBATION & : 

PAROLE, et al., :

Respondents : NO. 05-5662

ORDER

AND NOW, this 9th day of May, 2006, upon careful and

independent consideration of the Petition for Writ of Habeas

Corpus (Docket No. 1), the respondents’ Answer and the

petitioner’s Reply and after review of the Report and

Recommendation of United States Magistrate Judge Carol Sandra

Moore Wells (Docket No. 9) and the petitioner’s Objections

thereto, IT IS HEREBY ORDERED that:

1. The Report and Recommendation is APPROVED AND

ADOPTED.

2. The Petition for Writ of Habeas Corpus is DENIED

AND DISMISSED without an evidentiary hearing. 

3. There is no basis for the issuance of a

certificate of appealability.

The petitioner has challenged a decision of the

Pennsylvania Board of Probation and Parole which denied him

parole, arguing that the parole board’s decision violated his due

process rights. The Report and Recommendation considered the

Case 2:05-cv-05662-MAM Document 11 Filed 05/10/06 Page 1 of 3
1 Even though the petitioner had not submitted his claim to

the state courts, the Report and Recommendation concluded the his

claim should be reviewed on the merits in light of Defoy v.

McCullough, 393 F.3d 439, 445 (3d Cir. 2005). The Court agrees

with this conclusion.

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petitioner’s claim on the merits1 and concluded that the parole

proceeding did not give rise to a protected liberty interest

requiring procedural due process and that the parole board’s

decision was not based on constitutionally impermissible grounds

and thus the petitioner’s substantive due process rights had not

been violated. In his objections, the petitioner does not

challenge the Report and Recommendation’s conclusion that he does

not have a protected liberty interest, but instead argues that

his substantive due process rights were violated because the

parole board’s decision was arbitrary and capricious. 

Although there is no protected liberty interest in

being granted parole, a decision by a parole board cannot be

arbitrary and capricious or based on constitutionally

impermissible reasons, such as race, religion or the exercise of

free speech rights. Block v. Potter, 631 F.2d 233, 235-37 (3d

Cir. 1980). However, it is not the role of the federal courts to

second-guess the decisions of parole boards. Coady v. Vaughn,

251 F.3d 480, 487 (3d Cir. 2001).

Here, the parole board denied the petitioner parole

because of: his version of the nature and circumstances of the

offenses committed; his refusal to accept responsibility; his

Case 2:05-cv-05662-MAM Document 11 Filed 05/10/06 Page 2 of 3
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lack of remorse; his prior history of supervision failures; and

his need to participate in and complete additional institutional

programs. Although the petitioner challanges the parole board’s

reasons for reaching these conclusions, the Court agrees with the

Report and Recommendation that the parole board’s decision to

deny the petitioner parole was neither arbitrary and capricious

nor otherwise violative of the petitioner’s constitutional

rights.

BY THE COURT:

 /s/ Mary A. McLaughlin

MARY A. McLAUGHLIN, J.

Case 2:05-cv-05662-MAM Document 11 Filed 05/10/06 Page 3 of 3